COMMON
Defense
HAPPY HOLIDAYS!
INDEX FALL 2021 NEWSLETTER PAGE 3 - A MESSAGE FROM THE PRESIDENT PAGE 4 - THE DEATH OF THE PEREMPTORY STRIKE IN ARIZONA
PAGE 7 - DEFEAT THE REPTILE BY NOT BEING DEFENSIVE PAGE 8 - UPCOMING PROGRAMS PAGE 9 - GALLAGHER& KENNEDY: A LIFETIME OF FRIENDSHIP
PAGE 12 - YLD PRESIDENT MESSAGE PAGE 13 - AADC YLD UPDATES PAGE 14 - MEMBERS ON THE MOVE
PAGE 15 - TIPS FOR DELIVERING BAD NEWS
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A Message From the President 2021-2022 Board of Directors Jill J. Ormond President
Micalann Pepe Vice President Amy Wilkens Treasurer
Brian Rubin Secretary
Chris H. Begeman Imm. Past President Adam Lang DRI State Representative Doreen Myles Executive Director
J.P. Harrington Bisceglia Parker Bunch Todd Erb Jennifer Elias Amanda Heitz John Gregory Jason Kasting
To all members of the Arizona Association of Defense Counsel, thank you for your membership! Throughout the last year, we’ve all had to adapt our practices in ways many of us would have never thought possible. We are fortunate our association endured 2020 with a successful virtual Annual Meeting, virtual events, webinars, newsletters, amicus briefs, dedicated Board, and committed membership. We are still facing challenges with a new lifestyle both at work and at home. The ongoing virus uncertainties will undoubtedly affect inperson planning and agenda items for months to come. With the incremental shift back to normalcy, the AADC Board of Directors is evaluating responsible options for holding in-person events, including the upcoming holiday receptions and fundraising events like the Barry Fish Golf Tournament.
Michael Hrnicek Kara Klima Shanks Leonhardt Grace Lynn Breena Meng J.T. Shoaf Lisa Streu
AADC’s successes over the last year will continue in the year ahead. We will continue to provide our membership the benefits of webinar CLEs, Amicus support, Listserv resources, networking opportunities both virtually and in person. We hope you join us and continue making AADC an excellent resource for our Defense Community.
Alexix Terriquez Zara Torosyan Victoria Torrilhon
2021-2022 YLD Board of Directors Kim Page President
Lastly, I would like to thank Immediate Past President Chris Begeman for his fortitude and resourcefulness during a global pandemic. His leadership is impressive, and I hope to follow his example. I wish you all a successful 2022, and I look forward to seeing you all very soon.
Nicholas Martino Vice President
Anne-Grace Reule Secretary
Daniel Bernardone Imm. Past President
Jill Ormond Gordon, Rees, Scully, Mansukhani, LLP AADC President 2021-2022
Kara Kaplan CLE Co-Chair
Nathan Gallinat CLE Co-Chair
Evann Waschuk Mentorship Program Chair
Maxwell Shanahan Community Outreach Chair
Seraphim Sparrow Board Member
Megan Swart Board Member
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The Death of the Peremptory Strike in Arizona BRIT A. SIMON, ESQ. – ASSOCIATE ATTORNEY, THOMAS RUBIN & KELLEY PC BRIAN D. RUBIN, ESQ. – MANAGING PARTNER, THOMAS RUBIN & KELLEY PC
Every member of the Arizona Association of Defense Counsel, and perhaps even most members of the public who have ever watched an episode of Law & Order or fulfilled their civic duty to sit on a jury, are probably familiar with the process of jury selection. The attorneys ask questions of the jurors in an effort to learn more about their backgrounds, identify any potential biases or conflicts, and eventually determine which individuals will sit on the jury itself. For centuries, attorneys have had two options with respect to removing jurors from the list of potential candidates – for-cause challenges and peremptory strikes. The former allows an attorney to strike a juror if they can cite to a specific reason why the juror should not sit on the jury based upon a lack of fairness or impartiality. The second option, the peremptory strike, allows an attorney to strike a juror without having to provide a reason. Historically, every state court in the country has afforded attorneys their right to exercise a peremptory strike of a juror.
This right, however, has not been unfettered. In 1986, the United States Supreme Court handed down an unwavering ruling which has since been binding upon every attorney in America. In that case, Batson v. Kentucky, the Court held that, in a criminal case, a peremptory strike may not be used to exclude jurors based solely on their race.1 Subsequent jurisprudence has resulted in the extension of Batson to civil cases 2 and cases where jurors are excluded on the basis of sex.3 In recent years, the sufficiency of these restrictions in terms of preventing the exclusion of a juror for an improper purpose, such as on the basis of race or sex, has been called into question by many. In fact, the appropriateness of the peremptory strike mechanism is an issue that has not only been debated in the United States, but across the world. England abolished peremptory strikes in 1988, and Canada did so in 2019. With respect to the latter, there have been varying opinions as to the impact said abolishment has had on
1) Batson v. Kentucky, 476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69; (1986) 2) Edmonson v. Leesville Concrete Company, 500 U.S. 614; 111 S. Ct. 2077; 114 L. Ed. 2d 660; (1991) 3) J. E. B. v. Alabama ex rel. T. B. 511 U.S. 127; 114 S. Ct. 1419; 128 L. Ed. 2d 89; (1994)
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the justice system. According to the Canadian Association of Black Lawyers, “[p]eremptory challenges are required to protect the constitutional rights of Black accused persons... abolishing them led to "the exacerbation of the very issue that it claimed to fix: systemic racism 4 ." Another Canadian legal organization, Aboriginal Legal Services, took a diametrically opposite view: "[t]he exclusion of Indigenous jurors through the use of peremptory challenges is a real and persistent problem that has a corrosive impact on the jury process.” Id. Arizona is becoming the first jurisdiction in the United States to undertake radical measures with the stated ultimate goal of reducing institutional racism as it pertains to jury selection. In the past, the Arizona Rules of Criminal Procedure afforded the prosecution and criminal defendant between two and ten peremptory challenges, depending on the severity of the charges. The Arizona Rules of Civil Procedure previously afforded a litigant four peremptory challenges. However, the jury selection process in Arizona is about to change significantly. On August 30, 2021, the Arizona Supreme Court instituted a landmark rule change that made Arizona the first state in the country to abolish the use of peremptory challenges in criminal and civil trials. The rule change will go into effect on January 1, 2022, and thereafter, the only challenges that can be advanced will be those that challenge the jurors based upon a lack of fairness and/or impartiality (and, separate and independent from the discretion of attorneys, a juror’s claim of hardship).
However, the proposal to eliminate the peremptory strike was not particularly well received by many members of the legal community in Arizona. Notable organizations such as The State Bar of Arizona, the Arizona Attorney General’s Office, the Mutual Insurance Company of Arizona, the American Board of Trial Advocates, and others all spoke out in staunch opposition to the proposed change. The motivation of most, if not all, of these organizations, was rooted in the argument that the abolishment of the peremptory strike rule would result in the empanelment of juries that were not fair or impartial. The comment submitted to the court by The State Bar of Arizona, in opposition to the rule change, stated “[e]limination of peremptory strikes could well result in a jury selection process that helped conceal juror bias, resulting in fewer fair and impartial juries.... Instead of eliminating peremptory challenges, the State Bar submit[ted] it would be wiser to ensure this important procedure is used properly to secure a fair and impartial jury.”
The proposal to end the practice of peremptory strikes was championed by two state appellate judges: Peter B. Swann (Chief Judge of the Arizona Court of Appeals, Division I) and Paul J. McMurdie (Judge of the Arizona Court of Appeals, Division I). Judge Swann and Judge McMurdie argued that peremptory strikes propagated bias against potential jurors on the basis of sexual orientation, disability, gender, race, or ethnicity. "The primary tool by which this discrimination is practiced is the peremptory strike,'' they wrote in their petition.
4) https://www.nationalmagazine.ca/en-ca/articles/law/in-depth/2020/why-are-we-eliminating-peremptory-challenges
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There are, of course, potential benefits to the elimination of the peremptory strike, which are independent of the overarching goal of reducing institutional bias. It is no secret amongst attorneys that the jury selection process can take hours, and potentially days, depending on the magnitude of the case at hand. Allowing attorneys to only strike jurors for cause, as opposed to granting them latitude to do so for an unspecified reason, may assist in streamlining the process. No one has argued that attorneys do not use the jury selection process to benefit their “side.” And thus, the removal of any such efforts to form a jury that is favorable to one side versus the other (whether that be for a proper or improper purpose), could certainly speed up the empanelment of a jury. Further, because there will be a reduced number of stricken jurors, the pool of potential individuals needed in order to eventually seat a full jury will be lessened as well. That is not to say that these benefits outweigh the potential negative impact of this rule change, however, it is certainly something to be considered as the system swiftly shifts away from peremptory strikes. On a procedural level, this rule change will likely heighten the level of “control” a presiding judge will have over the empanelment of juries. Under the new rules, the only mechanism available for striking a juror will be a challenge for cause (or, independently from
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the purview of the attorneys, a juror’s claim of hardship), and the determination as to whether the claimed “cause” as set forth by an attorney will be at the discretion of the judge. By way of example, if an attorney attempts to strike a juror because he attended the same university as a defendant, the judge will be the sole determinator of whether, in light of the facts and circumstances of the case, said cause is sufficient to warrant the striking of that juror. If the judge disagrees, and the juror is allowed to be seated, the opposing party is essentially without recourse aside from their right to appeal a verdict following the trial. While no one, particularly the authors of this article, intends to set forth an opinion that the discretion of judges gives rise to any impropriety, there is no doubt that a difference of opinion as to the sufficiency of “cause” can be significant. Because Arizona is the first state to ban the use of peremptory strikes, other jurisdictions will certainly be monitoring the effects said change has on Arizona’s judicial system. Whether other states adopt similar or identical changes remains to be seen. What is clear is that Arizona has made an aggressive move here – and others are, and will continue to be, watching closely to see how this change plays out.
Defeat the Reptile by Not Being Defensive By: John D. Lierman, J.D., Ph.D., Esq. Jones, Skelton & Hochuli, P.L.C. tactics are supposed to work on juries by triggering supposedly primitive, thus reptilian, instincts in jurors to protect themselves and their communities from the sort of harm a defendant is alleged to have caused. Maybe they work that way on juries, and maybe they don’t. Reptile tactics definitely work on defendants though. They work on defendants by making them think about their own sense of right and wrong. That is why I said reptile questions are “supposedly” about safety. They are not really. Safety might be what plaintiff counsel wants the jury to be thinking about, but it is not what the questions are about. The questions are about the defendant’s virtue. Whatever reactions reptile questions trigger in a jury, what they trigger in defendants is the desire to stand up for their own virtue.
Cross-examination is kind of like fencing. Just as a fencer learns to be en garde to parry thrusts of an opponent’s foil, nearly any witness can learn to defeat “reptile” cross-examination. “Reptile” denotes an insincere, even dishonest, set of questions that plaintiffs lawyers use against unwary defendants. I do not use the terms “insincere” and “dishonest” lightly, and I do not mean to impugn anyone’s character, but reptile questions are fundamentally dishonest and once people realize just how dishonest they are, they see the trap. With training, anybody can learn to be en garde against reptile tactics. Reptile questions are supposedly about safety. Reptile
That is why reptile tactics work so well on defendants. While most people are happy to defend their own virtue, defendants accused of a tort are often dying to do it and have been doing it with friends and family ever since the lawsuit was filed. Defendants, merely by virtue of being defendants, are mentally positioned to defend what they did and why they did it, and to insist that whatever they did, they were being good and decent people at the time. So, when a plaintiff lawyer asks for their personal positions on matters of safety, most defendants are eager to testify that they are totally in favor of safety and promote it in their daily lives. Of course, the whole thing is a trap. The idea is to have a defendant create a personal safety standard that nobody can ever attain. Once that is done, it is merely a matter of parading the defendant’s own testimony Continues on page 17
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Upcoming CLE Webinars (12pm-1pm):
November 30, 2021 - YLD Webinar: Pre-litigation Evidence Preservation
December 15, 2021 - Escooters: User Behavior & Collision Scenarios
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Gallagher & Kennedy: A Lifetime of Friendship CONVERSATION WITH MIKE GALLAGHER, ESQ.
How did you come to Arizona? I came to Arizona from Los Angeles to attend ASU on a baseball scholarship. Tell us about your years at ASU. I was hurt most of the time during my years at ASU which was disappointing, but we had great teams and won the NCAA. After college, I signed a contract to play professional baseball. What made you decide to go to law school? My bad arm ended my baseball career. Going to law school was my second choice. I was a scout for the New York Mets, and they paid for law school. Where did you practice before starting Gallagher & Kennedy? How did you and Mike Kennedy become friends? Before Gallagher & Kennedy, Mike Kennedy and I worked at Snell & Wilmer. At that time, I was a young partner, and Mike was an up-and-coming superstar associate. We worked together a lot. Tell us about how you two started the firm of Gallagher & Kennedy.
I wanted to scratch the entrepreneurial itch and start a business. Mike and I went to a Suns game one night. At dinner, I asked if he wanted to join me and start a firm. He was all in. What were some of the biggest challenges you and Mike faced in the early days? Like most businesses starting from scratch, financing was a significant challenge. We were lucky to get a bank loan. Getting business was another challenge. We always worked hard, and we were good producers. The thirdlargest challenge was hiring good people. One of the best decisions we made was hiring Kevin O’Malley. He was #1 in ASU’s graduating class the year we started the firm in 1978. Is there a funny story involving Mike you can share? We were meeting the GC of a major airline for dinner. Mike had never met him before – let’s call the GC “John Smith.” When we met at Scottsdale Hotel, Mike went up to the guy and introduced himself as John Smith. The GC replied, “Well, that’s funny – that’s my name, too!”
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Tell us about the role Gallagher & Kennedy played in the development of professional sports in Arizona. When I was at Snell & Wilmer, I had some sports clients and was an officer of the Phoenix Roadrunners Hockey Team. Mike had a golf background and a sister on the pro tour. At some point, Governor Bruce Babbitt appointed me Chair of a committee to bring the NFL to Phoenix and later Mayor Terry Goddard asked me to head up efforts to obtain a MLB franchise. Joe Garagiola, Jr., a sports lawyer, left our firm to become the first General Manager of the Diamondbacks. Mike and I were both Phoenix Thunderbirds and he was chairman of a Phoenix Open golf tournament. He also served as president of the Diamondback’s Charitable Foundation from its inception and headed up two Super Bowl committees. Our sports work went well and gained the firm a nice reputation. How do you feel the practice of law has changed in the last 40 years? Back in the day, the Bar was small. Lawyers treated each other pretty well because we knew we would come across each other’s paths sooner or later. Your reputation meant everything. These days, you often have cases against attorneys you won’t see again. This type of distancing causes a lack of professionalism in my opinion. When you reflect on the years, you and Mike spent together, what memory stands out the most? When I think about Mike, I think of the early days. There were no two lawyers who were closer. We spent a lot of time together and could finish each other’s sentences. What advice or wisdom can you share with young lawyers starting today? You picked an excellent profession that can provide a nice lifestyle. But if you are looking to get rich, get out of law and into business. A reputation can take years to build and minutes to destroy. Cherish it. You can’t help it if you are not the smartest person in the room, but there is no excuse for not being the hardest worker.
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YLD President Message Happy Fall! As this year’s President, I am honored to continue the AADC Young Lawyers Division’s traditions of early career networking, legal education, and community outreach. This year, our goal is to expand our firm representation to diversify our board member composition. On that note, I’m happy to announce we have three new board members to welcome: Andie Logue with Rai & Barone, Jim Carlson with Bowman & Brooke, and John Habib with Snell & Wilmer. Additionally, we will be expanding our mentorship program to focus on law students to assist in navigating their careers in the ever-changing landscape of COVID-19. Our goal is to get the AADC name out there earlier in a young lawyer’s career, so that newly barred attorneys already know about AADC and all it has to offer, starting in law school. So far we’ve had a great start to the year. I was thrilled to see both new and familiar faces at our Bar Results Happy Hour at Sazerac in October hosted by Rimkus Consulting. Our CLE Co-chairs, Nathan Gallinat and Seraphim Sparrow, are working to put together a great year of CLE’s for our membership. We’re kicking off the “academic” year with our first CLE on November 30, which will cover Pre-Litigation Evidence Preservation brought to you by Steven Tuskan of Rimkus Consulting. Our charity partner, Southwest Human Development will be introducing our holiday book donation drive at the CLE. Our Charity Chair, Max Shanahan is working towards getting our softball tournament to be live and in person in early 2022. While last year’s raffle was still a success by Zoom, it will be great to see everyone out there with some competitive spirit! As always, we hope to see you at these events and if you have any ideas for a CLE, or have interest in joining the YLD Board, please reach out to me at kpage@jshfirm.com .
Kimberly Page Jones, Skelton & Hochuli 2021-2022 YLD President
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AADC YLD Updates Bar Results Happy Hour The AADC YLD kicked off October with a Bar Results Happy Hour at Sazerac, sponsored by Rimkus Consulting. Those in attendance enjoyed delicious food and specialty drinks, while meeting new colleagues and reconnecting with classmates that many had not seen since the pandemic began in 2020 due to law school being remote. The night ended with a raffle prize donated by AADC sponsor, MerrTino Group. Upcoming CLE November 30 The first CLE of the year will take place on November 30 at noon. Steven Tuskan from Rimkus will be presenting on Pre-Litigation Evidence Preservation. In addition to the presentation, Southwest Human Development will do a short presentation in the beginning to spread the word about their Grow A Reader virtual book drive! Grow a Reader Virtual Book Drive! Did you know that nearly 2 out of 3 children in low-income communities don’t have a single children’s book to call their own? You and your firm can make a difference by joining the AADC YLD in supporting the Southwest Human Development Virtual Book Drive! Your firm can ask for a donation bin to be brought to your office (Email dreno@swhd.org for details), or you can participate virtually by purchasing books online with this link: https://www.swhd.org/support-us/grow-a-reader-shopping-cart/ When you purchase books for donation through the Southwest Human Development, you’re planting the seed to help a child develop a lifelong love for reading. You are more than an early literacy advocate, you are a life changer. Plus, Grow A Reader virtual book drive donations are also eligible for a dollar-for-dollar Arizona Charitable Tax Credit! Finally, you can also participate in Giving Tuesday on November 30th, and donate during the CLE presentation!
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Members on the Move Jennifer Rebholz, Of Counsel for Wilson Elser Moskowitz Edelman & Dicker LLP, was elected to serve as President of the State Bar of Arizona. Ms. Rebholz is a trial defense attorney and Arizona board-certified specialist in the area of injury and wrongful death. As a strong advocate of public access to legal services, she encourages creative measures to close the gap to affordable legal assistance. Ashley Villaverde Halvorson, Partner at Jones Skelton & Hochuli has recently been appointed by Governor Ducey to the Maricopa County Superior Court. As long-standing member and former 2018 President of Los Abogados, Arizona’s Hispanic Bar Association, Ms. Halvorson will bring her vast legal experiences and diversity to her appointment. Current AADC Board Member Zara Torosyan, is now the Regional Counsel for McCarthy Holdings, Inc. With her extensive background and expertise in construction litigation, she brings a wealth of knowledge to complex litigation. Her oversight of the legal operations at McCarthy Holdings, Inc. is invaluable. AADC honors its awe-inspiring members!
JENN I F E R REBHOLZ Wilson Elser Moskowitz Edelman & Dicker LLP
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ZARA T O ROSYAN McCarthy Holdings, Inc.
Tips For Delivering Bad News By: Amanda Hough, Esq. Jaburg Wilk So, what do we do? The following roadmap provides some tips for approaching this unpleasant task. 1. Prepare to deliver the bad news by making a plan: Ideally, you know that there is a ruling or important event set to occur on a certain date and can pre-set a meeting with your client to discuss the outcome. If that is not the case, then try to have as little time between your request for the meeting and the actual meeting taking place. Determine who should be present at the meeting. Is this a one-on-one conversation? Is there an associate and a partner who both should be present?
One of the challenges of defending clients is the occasional need to deliver bad news to them. While we would like to report that the jury found for our client, or that the judge ruled in our client’s favor on every motion, the reality is that, despite our best efforts, things do not always go the way we want. In the case of criminal defendants, it may involve news that they are going to prison – and worse. Luckily for the civil defense, the bad news is not so severe.
Where will it take place? Ideally, you can meet with the client in person. Of course, the client may not be able to meet with you in person for one reason or another. With bad news, it is best to have a face-to-face conversation so you can better read your client’s reaction and determine how they are taking the news. Words can say one thing, but body language and facial reactions can tell a completely different story. In our post-COVID
Nonetheless, telling a client bad news regardless of where it falls on the scale of severity is never fun. So, how can we better approach delivering bad news? Communication is key here. Obviously, we must promptly communicate the information to our clients. That being said, we do NOT want to brashly pick up the phone and bluntly tell them we received the ruling and it was not in our favor. We also do not want to build anxiety by sending them a triggering email and then not be available to actually meet for several days.
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world, we now have the option to use video conferencing with greater ease. This allows for face-toface conversations to take place when clients are not able to meet in person. A phone call, while not the best choice, is sometimes the last available option. Avoid delivering bad news via email. Before you meet with the client. visualize how you will do this delivery. Remember, it is about the client, not about you. Think out the points to discuss and possible questions your client may have for you in advance. You would not go to trial unprepared; why do so here? Remember that your own anxiety, while it should be acknowledged, is not what is important here. The important thing is to respect the person receiving the bad news by trying to put yourself in their shoes.
Finally, be prepared to answer questions the client may have and, if appropriate, discuss the next steps. Again, be straightforward and to the point. 3. Next Steps: It may be important to separate the bad news from what is to be done next. The client may need time to absorb what you have said, and the next steps will get lost, misunderstood, or otherwise not be optimal. Other clients might want to jump right into the next steps to move past the bad news. Read your client here and do what is appropriate for the situation. Again, it is about the client, not you. You might be anxious to get past the bad news and discuss something you can do about it, but your client needs to be ready, as well.
2. Deliver the bad news: Start by giving a brief recap of what took place in the case that you are meeting to discuss. (“You remember when you first consulted me about ____, and then we did…”). Then, provide what some people like to call the “warning shot.” This step is important because it gives the person a chance to become prepared. (“Things did not go how we hoped.” “I wish the news were different.”). Then, state the bad news simply and in a straightforward way but not insensitive to the client’s feelings. Your tone of voice and body language are extremely important. Remember, people may forget what you said exactly, but they will remember how you said it. I also suggest not just saying things to fill the airtime simply because it is painful news for you to deliver. Allow silence. Let the client process what they are hearing. Often, we get anxious and want to fill the silence. Don’t. The person needs time to digest what you have said without the distraction of your talking. Acknowledge the client’s emotion, if it is obvious. Be prepared to accept what they say and not argue with it, though argument is what we often do as lawyers. Be sensitive and take care not to impose your assumption about how you would have reacted on the other person. Even if it is not obvious, you can empathize with their situation (“I can appreciate how you may feel upset,” or “I wish it were otherwise.”)
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If appropriate at the same meeting, present your proposed plan and simply state what you propose to do next. Allow the client to have a follow-up meeting, if necessary, for that conversation to go on. Respect the fact that the client may have difficulty letting go of the good news he or she hoped to hear. Nevertheless, you may discover that the client has a back-up goal that you may be able to meet, such as mitigating the impacts of what might happen next or providing an alternative course of action. In the end, delivering bad news is never fun. But, being prepared with a plan in this situation can help ease through the difficulty.
Defeat the Reptile by Not Being Defensive continued about safety in front of the jury and showing the jury how egregiously the defendant fell short of his own standard. Unfortunately, any defendant is a subject matter expert on the subject of his own virtue, so once a defendant testifies about his lack of virtue, no other witness’s testimony can do much to counteract it.
the right answer is one reason to ask this question first. Most clients, knowing they are in training, are already looking for a catch, and my method only works if you get the client rolling in the right direction. This question never fails because there is only one right answer and everyone knows it. Plus, I have seen plaintiffs counsel do the same thing, and it worked for them too.
In my experience, it has never worked to try to stop clients from defending themselves on the stand. For one thing, sometimes they did not do what they are accused of doing and the truth must be told. But for another, it never seems to get very far trying to get defendants not to be defensive. They just are.
Also, ask this question first because it (benevolently) tricks the client into thinking that lawyers are dummies after all and all the questions will be this easy. That is important. Reptile questions work because they seem absurdly easy to answer—a misconception that proper witness preparation will dispel, a task I find easier to accomplish if I lull the client into complacency myself.
What does seem to work is to train clients to spot the dishonesty hidden in the typical line of reptile questions. Taking that approach has yielded a pretty consistent record of success in depositions for all sorts of tort cases.
Most importantly, ask this question first because you get your clients thinking about their virtue. That is what plaintiff counsel wants to happen and, for proper preparation and training, defense counsel needs to accomplish the same thing.
First, I put my clients through a sample run of reptile questions. I use the same series of questions, with minor variations, no matter what the case is actually about. I use the same questions for two main reasons. One is that, at least in my experience, plaintiffs lawyers use pretty much the same questions no matter what the case is about, so why change it up. The other reason is that, because during reptile questioning what is on trial is the defendant’s virtue, the particular facts do not make a lot of difference so the questions can be much the same. My first question is always, “As a [the client’s role or job] you don’t want anyone to get hurt because of your [related activity], do you?” Both blanks get filled in with whatever the client was supposedly doing, or responsible to be doing, at the time of the alleged tort. Lots of times the activity is something with an obvious connection to an alleged injury, like “driving,” or “mopping,” or “removing a kidney,” but the question works for less obvious activities too, though occasionally some artistic license is needed.
After the first question, I move to the main body of reptile questions. These are questions I have heard plaintiffs lawyers use in depositions myself, for the most part: “Would you agree that you should do everything you can to minimize the risk of anyone getting hurt because of your [the activity used in the first question]?” “Isn’t one of a [client role]’s greatest duties to protect safety of [some suitable class of people, e.g., other drivers, co-workers, customers]?” “You would agree that a [client’s role] should make the safety of [that suitable class of people] the number one priority, right?” “Safety is always the top priority, isn’t it?” “If safety is the top priority, other considerations have to give way to safety, right?” “You agree you should do everything possible to promote safety?” “You at least agree that you would never compromise safety over budgetary concerns?”
This first question always gets the needed answer, which is “No, I don’t want anyone to get hurt.” Getting
These questions may not be perfect and you may have better ones, but they are pretty good. I have never had a
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client get through all of these questions without agreeing to something. When a client hesitates, I do what I see plaintiff counsel doing to coax the needed answers, for example re-phrasing a question to begin with the words, “But you would at least agree,” etc. It is amazing what you can get out of someone if you present the question as a compromise position, whether or not it really is a compromise. Again, plaintiffs attorneys do it all the time. After getting all the yeses I can, I tell clients they just stepped into a trap, and explain what the trap is: that by answering in the affirmative, they painted themselves into a corner so tight that no matter what they did, they messed up. I then walk them through the many astonishing things that they just agreed to, asking them to think what it means to agree to do “everything possible,” or to do anything “always.” If they agreed never to compromise safety over budgetary concerns, I am ready with examples of safety devices or practices that would reduce risk of injury but at stupendous costs. Cars that can go into space, personal bodyguards, and armor for everybody are favorite examples. The examples are absurd, but absurdity is the point. By this time, clients recognize that a trick has been played. Obviously, you do not want to come off like you were being mean, but I have never had a client take it that way if I explain that these trick questions are ones that I have actually seen used against my clients. That way, I am not dreaming up a bunch of devious questions, I am letting them in on their opponent’s secret weapons. Often, they see without being told that the trick questions have a lot in common but I focus on two things: the questions ask them to rank safety, and the questions demand absolutes—the “always” and “everything” elements. Frequently, they have already figured that out for themselves. But this is only half the battle. Even clients who perceive that something went wrong do not yet understand why something went wrong, which means they will likely miss the trap if the questions get worded differently. Equally importantly, at this point most clients are not yet ready to give different answers because they still want to stick up for their own virtue and they do not see anything dishonest in the questions themselves.
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That comes in the second part of the training, where I go to a second set of questions something like this. I start off, “You drove to our meeting today?” Usually they did but if not then I fall back to some other recent driving they have done, whatever it may have been. Then, I ask, “I’m guessing you never exceeded a speed of fifteen miles per hour?” They did, of course, so I continue, “Is that because you are a selfish person who does not care about anyone’s safety, either yours or that of others?” Clients usually laugh, and sometimes are not sure whether to be offended. I go on, “But you are aware that ‘speed kills,’ as the saying goes?” They are aware. I elaborate, “In fact, everyone knows that, right? Interstate 10 between Phoenix and Tucson now has a speed limit of seventy miles per hour much of the way and on a regular basis we have serious accidents on Interstate 10, accidents we could eliminate if we reduced the speed limit on the interstate to fifteen miles per hour, but we don’t do that, do we? Why don’t we do that?”. The answer I give, if the client has not already said it, is that we don’t lower the speed limit on the interstate because we want to get to Tucson in two hours, not two days. And then I give the punchline, which of course you have seen coming: “So you see, we do not always put safety first. We do not make all considerations give way to safety always. We, as a community, balance safety alongside other priorities, such as profitability and even mere convenience.” So far, no client has failed to see the sense of that. To drive the point home, I change the focus to local driving, pointing out that on a regular basis we see collisions with people getting hurt that we could practically eliminate if we lowered the speed limit everywhere to fifteen miles per hour. I ask why we do not do that, which leads to the one location where we do: school crossing zones, a great opportunity to show how circumstances can change the balance between safety and other priorities. The commonplace transition from a “normal” speed limit to a brief period at fifteen miles per hour, then back to “normal” is something all of us have seen, and helps clients realize that circumstances determine—and change—how we prioritize safety. All this brings clients to the place I wanted them to be: thinking about safety as something in balance with
—even in tension with—other concerns and recognizing that to be the right way to think about safety. I have never had a client not get it after working through the traffic examples. Even the occasional client who frankly admits to speeding, and thinks he has defeated the example, is brought up short if I ask, “Do you speed in school zones?” So far, nobody has admitted to speeding in school zones. So far, everybody eventually sees that, however they answered the trick “reptile” questions, in reality they actually practice safety in tension with other factors as dictated by circumstances at the time.
It can be incredibly satisfying to watch a plaintiff attorney slog through his entire list of reptile questions only to be met, over and over again, with “Safety is part of everything I do.” It is like watching breakers hit the rocks. Well-trained defendants find themselves enjoying the moment as well, as they realize they are actually in control. Plaintiff counsel will flail, trying to think of ways to coax out an admission that ranks safety number one, or agrees that safety is “paramount,” whatever that means. If your client is well prepared you can sit back, object to form, and wait until, exhausted, plaintiff counsel at last moves on.
I have never had a client who was not able, after getting through the speed limit interview, to reflect back on the reptile questions and comprehend the dishonesty of those questions. They all see the insincerity of questions asking them to rank safety in the abstract. They see how the trick worked by setting them up to brag about how virtuous they are and make them feel guilty if they gave any other answer. They see the trap and they see how the trap works. Sometimes they get angry at the duplicity of the questions. It is a satisfying moment.
Reptile questions seem like they are about safety, but to defendants, they are about whether they are good and decent people. That is why they can be so effective. To prepare clients, first help them recognize that reptile tactics are a dishonest attempt to make them feel like terrible people if they resist ranking safety as their top priority. Expose that dishonesty by demonstrating that in real life we think about safety in tension with everything else, not as an absolute that nobody can ever attain. Finally, provide clients with a more honest and ethically satisfying way to stand up for themselves without creating a false standard for their own conduct.
Most clients then want to know what to do with reptile questions. In my opinion, the less clients say the better because, whatever reptile questions trigger in jurors’ brains, in defendants’ brains they trigger the desire to defend their virtue. Thus, longer answers inevitably wander into explanation, and explanation feeds the beast. Plaintiff counsel will ask the witness to explain even more, or to give examples, and will keep teasing things out looking for something to exploit. All the while, the witness sounds, and is, more and more defensive. To avoid that mess, I instead drill clients on two stock answers designed to avoid taking the bait. First, in response to any question that seeks to rank safety or create some kind of “always,” “everything” absolute, I teach clients to respond, “Safety is part of everything I do.” And in response to follow-up questions attempting to articulate how safety is part of everything, to respond, “It depends on the circumstances.” Any other follow-ups can generally be met by reverting back to one of those two answers. These answers avoid ranking safety, which is what plaintiff counsel is desperately trying to make him do.
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AADC Newsletter Committee: Amy Wilkens (Lorber, Greenfield & Polito, LLP), Brian Rubin (Thomas, Rubin & Kelley, P.C.), Eadie Rudder (Carpenter, Hazlewood, Delgado & Bolen), Jennifer Elias (Farley, Choate & Wood), Grace Lynn (Bremer, White, Brown & O'Meara), Kara Kaplan (Gordon Rees), Stephanie Baldwin (Jones, Skelton & Hochuli), and Doreen Myles (AADC Executive Director)